Volume 191 — Missouri Reports

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) The motion to quash the information, or each count therein, should have been sustained, because: (a) The first count of the information (buying and receiving stolen property, knowing it to be stolen) fails to describe the property with sufficient certainty. Clark’s Crim. Proc., sec. 92. (b) Said first count charges two separate and distinct crimes in the one count.

Louis City Circuit Court. — Ho». Daniel G:Taylor, Judge. The evidence was sufficient to send the case to the jury, and fully sustains the verdict. State v. Pranke, 159 Mo. 535; Greenleaf on Evidence, sec. 440; Starkie on Evidence (10 Ed.), 173; State v. Duncan, 116 Mo. 288; State v. Kaiser, 124 Mo. 651; State v. Sanford, 124 Mo. 487.

Louis City Circuit Court. — Hem. Jesse A. McDonald, Judge. (1) The court erred in overruling defendant’s objection to rebuttal evidence of the State tending to prove the good reputation of witness Yaugbn, in tbe absence of attack upon said reputation by defendant. State v. Cooper, 71 Mo. 436; State v. Thomas, 78 Mo. 327; State v. Patrick, 107 Mo. 147.

Louis City Circuit Court. — How. Daniel G. Taylor, Judge. The evidence is insufficient to sustain a conviction. To warrant a conviction for an assault to commit a rape the evidence must show that the defendant’s intention was, if it became necessary, to force compliance with his desire at all events, and regardless of any resistance the woman might make. State v. Burgdorf, 63 Mo. 65; State v. Priestly, 74 Mo-. 24; State v. Owsley, 102 Mo. 678; State v. Scholl, 130 Mo. 396.

— Hon. Jos. J. Williams, Judge. The court did not err in refusing the instruction asked by defendant in the nature of a demurrer to the evidence. State v. DeWitt, 152 Mo. 76; State v. Williams, 149 Mo. 496.

— Hon. E. B. McKee■, Judge. (1) A challenged jurror cannot pass on his willingness to he fair and-impartial and thus qualify himself. State v. Foley, 140 Mo. 612. And a juror is disqualified who would require the defendant to prove his innocence. Such additional burden, which the law does not impose, cannot be imposed to satisfy the whim of a juror. State v. Bauerle, 145 Mo. 16; State v. Bryant, 93 Mo. 279.

— No». Henry G. Riley, Judge. (1) Appellant’s demurrer to the information herein should have been sustained. State v. Clayton, 100 Mo. 516; State v. Ferguson, 162 Mo. 673; State v. Williams, 83 S. W. 756. (2) The court erred in refusing to grant appellant a change of venue upon his application and affidavit. Appellant’s application for a change of venue was in strict conformity with the requirements of the statute (R. S. 1899, sec. 2594). State v. Shipman, 93 Mo. 156.

'Appeal from Boone Circuit Court. — Hon. Alex. H. Waller, Judge. (1) Manifest error was committed by the court in giving instruction 10, upon behalf of the State. This instruction is palpably erroneous, and absolutely deprived the defendant of his right of self-defense. State v. Gilmore, 95 Mo. 554; State v. Rapp, 142 Mo. 448.

Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge. (1) Section 2413, Revised Statutes 1899, invoked by the State to confer jurisdiction upon tlie St. Louis Court of Criminal Correction, is unconstitutional, being repugnant to sections 12 (as amended) and 22, article 2, Constitution of Missouri. State v. Kelm, 79 Mo. 515; Ex parte Slater, 72 Mo. 102; State v. McGraw, 87 Mo. 161; State v. Hatch, 91 Mo. 568; State v. Smiley, 98 Mo. 604; In re McDonald, 19 Mo.

<p>Appeal from St. Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge.</p>

<p>Appeal from St. Louis Court of Criminal Correction.— Eon. Hiram N. Moore, Judge.</p>

<p>Appeal from St. Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge.</p>

— Hon. J. L. Fort, Judge. The testimony of defendant clearly makes out a case of manslaughter in the fourth degree, and this testimony is amply corroborated by the circumstances and the testimony of the others; it was therefore error when the court failed and refused to instruct the jury on this point. Secs. 1833, 1834, R. S. 1899; State v. Ellis, 74 Mo. 207; State v. McAnally, 87 Mo. 644; State v. Henson, 106 Mo. 66.

<p>NO EXCEPTIONS. Where defendant fails to file a hill of.exceptions, and the record proper is free from error, the appellate court will affirm the judgment.</p>

<p>NO EXCEPTIONS. Where no bill of exceptions is filed, there is nothing before the appellate court except the record proper, and if that is free from error, the judgment will be affirmed.</p>

— Hon. E. B. McKee, Judge. (1) The court erred in overruling defendant’s application for a continuance based upon the absence of Foreman, a material witness, for whom a subpoena was duly issued but returned not found. State v. Maddox, 117 Mo. 684; State v. DeWitt, 152 Mo. 86; State v. Anderson, 96 Mo. 250; State v. Hesterly, 182 Mo. 29; R. S. 1899, sec. 2600. (2) The court erred in excluding the testimony of defendant’s mother, showing the cause of defendant’s flight.

— How. J. L. Fort, Special Judge. A careful examination of the information will disclose the fact that the pleader has wholly failed to charge a felonious striking, penetrating and wounding. State v. Williams, 184 Mo. 261; State v. Green, 111 Mo. 585; State v. Ferguson 162 Mo. 673; State v. Herrell, 97 Mo. 105; State v. Feaster, 25 Mo. 324; State v. Arnwine, 126 Mo. 567; State v. Rector, 126 Mo. 329.

<p>Appeal from Buchanan Criminal Court. — Ho». B. J. Casteel, Judge.</p>

— Now. Henry G. Riley, Judge. (1) The court erred in overruling defendant’s demurrer to the State’s evidence at the close of the State’s case. State v. Patrick, 107 Mo. 147; State v. Burgdorf, 53 Mo. 65.

<p>NO BILL OF EXCEPTIONS. Where no bill of exceptions is filed, and there are no errors in the record proper, the judgment will be affirmed.</p>

Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge. It is.a general rule that an indictment upon statutes, especially the most penal, must state all the circumstances which constitute the definition of the offense in the act to bring the defendant precisely within it, William v. State, 42 Miss. 328 ; State v. Latham, 73 Mo. App. 196.

<p>COSTS: Criminal Case: Appellate Jurisdiction. A judgment for costs rendered against a defendant in a criminal prosecution is a proceeding wliicli is independent of the criminal case. And, hence, where an execution issues for the costs adjudged against the defendant, and motions to quash and for new trial and in arrest are overruled, and the amount of the costs is below the jurisdiction of the Supreme Court, the appeal should be taken to the proper Court of Appeals.</p>

<p>NO BILL OF EXCEPTIONS. Where defendant files no bill of exceptions, there is nothing for review except the record proper, and if that is free from error, the judgment will be affirmed.</p>

— How. John T. Moore, Judge. (1) This court will reverse where there is such a lack of evidence as to indicate that the jury acted from prejudice, or the evidence is so weak that the necessary inference is that the verdict was the result of passion, prejudice or partiality, and not that calm weighing of the facts in evidence which should characterize the deliberation of a jury.

— How. Jas. E. Ha&eU, Judge. The court erred in refusing to grant defendant’s demurrer, at the close of plaintiff’s evidence, and in refusing to peremptorily instruct the jury to find for the defendant at the close of all the evidence, (a') There is no dispute as to these facts, viz., that when Schmidt was at a point- twenty feet south of where he was struck, he could have seen the train coming toward him, at least two hundred and fifty feet, (h) The undisputed evidence…

— So». W. W. Graves, Judge. (1) There has been no proof of any administration upon the estate of Amanda Brown and John W. Brown, neither has there been any proof that, in the absence of an administration, they left personal property sufficient to pay their debts. The action of partition cannot be maintained before administration of the decedent’s estate or proof that there is sufficient personal property or other real estate not already partitioned to pay the debts.

Louis City Circuit Court. — Hon. Franklin Ferriss, Judge. (1) The court erred in overruling the demurrer to the evidence at the close of the plaintiff’s case and at the close of the whole case, and in holding and instructing the jury upon the theory that under the terms of the Alexander contract the bonds could not be lawfully pledged to secure the commissions of W. J. Hayes & Sons, H. E. Hayes and the commissions and interest to Park National Bank.

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. (1) The will was properly executed. Martin v. Bodern, 158 Mo. 389; Craig v. Craig, 156 Mo. 358. (2) Mrs. Lack on September 13, 1893, was physically and mentally competent to make the will offered for probate in this proceeding. Von de Veld v. Jndy, 143 Mo. 363; Riley v. Sherwood, 144 Mo. 354; Sehr v. Lindeman, 153 Mo. 286; Cash v. Lust, 142 Mo. 639.

<p>1. INDEMNIFYING BOND}: Attachment Suit. An indemnifying bond, given to the constable, by the plaintiff in an attachment, suit and his sureties, after judgment before a justice of the peace in favor of such plaintiff and after execution and levy on the property, upon the assertion by a third party of a claim of of ownership to the property, is a valid bond, and after the property has been sold by the constable and the proceeds turned over to the attaching creditor, the constable, at the relation and to the use of said third party, may sue thereon, although said third party did not, in the attachment suit, inter-plead for the property. [Distinguishing State ex rel. v. Koontz, 83 Mo. 323.]</p> <p>2. -: -: Special Execution. A suit may be maintained in such case whether the execution was issued on a general judgment against the attachment debtor, or was a special execution based upon a judgment in attachment where the defendant therein was brought into court only by constructive notice, and not on personal service. Under section 4043, R. S. 1899, which authorizes such bonds, no distinction can properly be drawn between a levy of a special and of a general execution.</p> <p>3. -: -: -: Levy of Execution: Estoppel: Recital. Where the indemnifying bond, given by the plaintiff in the attachment suit, recites that the constable had levied the execution prior to the execution of the bond, the plaintiff, when sued on the bond, is estopped to assert that there had been no levy of the execution in the attachment suit when the bond was executed.</p> <p>4. -: -: -: -: Description of Property Attached. Where there is no room for doubt that there was but one engine attached and sold under execution, there is no merit in the contention that the indemnifying bond describes the property as a Birdsall engine whereas in fact it was a Russell engine.</p>

— flew. Edw. P. Gates, Judge-. (1) The verdict of the jury was grossly excessive and against the great weight of the evidence npon the extent and character of the injury, and was clearly the result of passion and prejudice. Garrett v. Greenwell, 92 Mo. 120; Chouquette v. Railroad, 152 Mo. 266; Zoye v. Trawich, 94 Mo. App. 307; Cooper v. Railroad, 94 Mo. App. 425; Meir v. Railroad, 81 Mo. App. 410; Kennedy v. Railroad, 103 Mo. 1; Chitty v. Railroad, 148 Mo. 64; Spohn v..

— Eon. E. G. Riley, Judge. (1) The defendants, on cross-examination of the plaintiff, sought to attack plaintiff’s title1, and a conveyance, by showing that Newton C. Morehead was a minor at the time he executed a certain deed to Scobey, in plaintiff’s title.

<p>1. JUROR: Fairness. There is no feature of a trial more important and more necessary to the pure and just administration of the law than that every litigant be accorded a fair trial before a jury who enter upon the trial wholly disinterested and unprejudiced.</p> <p>2. -: Voir Dire: Prejudice. In a suit for personal injuries against a street-railway, a juror on his voir dire stated that eight or nine years previously he had been thrown off of a street car, and that that fact would influence him in the trial of the cause. He also stated that he would be governed by the testimony and instructions, and believed he could render an impartial verdict; that he had nothing against the defendant, but that he had during all those years entertained a prejudice ' against street car companies, and that that prejudice existed when he was first examined as to his qualifications but that during the examination that prejudice had been removed, and that he had reached the conclusion within the five minutes occupied by the examination that he could try the case fairly and impartially. Held, that he was not a competent juror.</p> <p>3. -: --: -: Against Company and Its Employees. A juror on his voir dire stated he had a sort of prejudice against the defendant street railway company, but that he did not * think it would influence his verdict, yet added: “But still a person having a prejudice, — that unconsciously would bias his opinion; I would give more preference to the testimony of a non-employee of the company than I would an employee,” and explained that he meant by that that he would consider the interest of an employee in determining the credibility of his testimony. Held, that the defendant’s challenge of the juror should have been sustained.</p> <p>4. -: -: Determination of Qualification. It is for the court, and not for the juror, to determine his qualification. That determination should not be made to depend upon the conclusions of the juror as to whether or not he could or would divest himself of a prejudice he admits exists in his mind.</p> <p>5. -: -: -: Conclusiveness: Discretion: Finding of Fact. The ruling of the trial court that a juror is qualified is not conclusive, but is subject to review on appeal, especially where the facts are undisputed. The trial court exercises a judicial discretion in determining the juror’s qualifications, but its rulings thereon are reviewable in the appellate court as are other acts involving the judicial discretion of the- trial judge. It is not the law that the determination by the trial judge of questions of fact touching the juror’s qualifications is final.</p> <p>6. -: Existing Prejudices: Evidence Necessary to Remove. No man is a fair and impartial juror who enters upon the trial of a cause with a prejudice that it would require a considerable amount of evidence to remove. [Criticising State ex Vel. v. Bank, 80 Mo. 1. c. 632.]</p> <p>7. -: -: -: Additional Burden. There is no reason why a litigant in a civil case should have the burden of removing from the mind of a juror an admitted prejudice against him.</p> <p>. 8. -: -: Voir Dire: Peremptory Challenges As Cure. The determination of the juror’s unprejudiced qualification should be determined wholly independent of any consideration of whether the party aggrieved had or had not exhausted his peremptory challenges. Each party is entitled to a panel untinctured and untainted by personal whim, bias or prejudice.</p> <p>9. NEGLIGENCE: Street Car: Rate of Speed. A speed of eight or fifteen miles an hour, in the outskirts of a great city, over an unimproved street, is not of itself a dangerous rate of speed for an electric street car with a headlight, although the night is dark and there are no street lights.</p> <p>10. -: -: Vigilant Watch. If it was the duty of the motorman in charge of an electric car to anticipate that persons would likely be traveling on the unimproved street at six o’clock of an evening in January, returning from the then World’s Pair grounds, and to sound the gong and warn persons so traveling over the street of the car’s approach, it was also the duty of a person driving a wagon on the car tracks to know that cars were constantly passing over the same and take proper precautions to get off of the track in time to avoid a collision.</p> <p>11. -: -: -: Dark Night: Discovery of Traveler: Closing Door: Demurrer. Where there is no evidence that if the motorman had been constantly and vigilantly looking ahead he could have seen the running-gear of a wagon on the track in front of the car in time to have avoided hitting it, it cannot be said that he was guilty of a breach of duty in turning for a moment just before he discovered the presence of the wagon to close the door of the car which the conductor had left open. And where there is positive evidence that he could not have seen the wagon sooner had he been looking, and that he diligently employed every instrumentality at hand to avoid collision after discovering it, the appliances being reasonably safe and the case being bottomed on his failure, after he had discovered or by the exercise of ordinary care could have discovered the wagon on the track, to stop the car in time to have avoided the accident, the court should have sustained a demurrer to the evidence.</p> <p>12. -: -: -: Instruction: Degree of Care: “Constant and Vigilant Watch.” Just before the motorman saw the running gear of a wagon traveling on the street car track in front of the car, he turned and closed the door, which the conductor had left open, and the court told the jury that it was his duty “to keep a constant and vigilant watch ahead.” Eeld, under the circumstances, the action being one of common law negligence, that the words “constant” and “vigilant” exacted a higher degree of care than the ordinary care which the law imposed. [Per Marshall, J.]</p>

• Appeal from. St. Louis County Circuit Court.— Hon. Jno. W. McElhinney) Judge. (1) The mere fact that an accident occurred in which plaintiff was injured is no evidence of negligence on the part of the defendant. Fuchs v. St. Louis, 167 Mo. 6201. (2) The rule res ipsa loquitur does not apply under the pleadings and evidence in this case. Bartly v. Railroad, 148 Mo. 138; Neville v. Railroad, 158 Mo. 293; Smith v. Railroad, 113 Mo. 82.

— Eon. A. M. Woodson, Judge. (1) It is unquestionably true that a city is liable under the Constitution for damages to a property-owner caused by grading a street. Smith v. St. Joseph, 122-Mo. 643.

<p>1. APPELLATE PRACTICE: Defective Abstract: Examination of Transcript. The appellate court will not in an equity case look beyond the printed abstract to the full transcript to ascertain the true facts in judgment.</p> <p>2. -: -: Index. The abstract must contain an index.</p> <p>3. -: -: Affirmance of Judgment. Where no intelligent understanding of the case can be had or any intelligent discussion of the questions raised can be made, from the abstract filed in this court, the judgment will be affirmed, although from the meager evidence set out in what purports to be an abstract that judgment may appear to be wrong.</p>

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) A non-judgment creditor may proceed in equity if it be impossible for him to obtain a judgment at law. Nieters v. Brockman, 11 Mo. App. 600'; Kent v. Curtis, 4 Mo. App. 121; Lackland v. Smith, 5 Mo. App. 161; Dodd, Brown v. Levy, 10 Mo.

Louis City Circuit Court. — Now. Franklin Ferriss, Judge. (1) The Santa Fe Railroad was not the general agent of the appellant. Such an agency could only arise by reason of some arrangement existing between tbe two companies. Railroad v. Railroad, 51 Fed. 465. No general arrangement is shown by the evidence. The only authority from the Chicago & Alton to the Santa Fe to issue tickets over its line for this occasion is contained in Circular Letter No. 7730.

<p>APPELLATE JURISDICTION: Title to Real Estate: Quashing Execution. From the judgment of the circuit court sustaining a motion to quash an execution levied on a homestead, the appeal is not to the Supreme Court on the ground that title to real estate is involved. The Constitution confers jurisdiction on the Supreme Court on the ground that title to real estate is involved, only in cases where the judgment directly affects the title, and does not confer jurisdiction simply because real estate is attempted to be sold under a judgment which does not itself directly affect the title. It is the judgment which must affect the title, and not the enforcement of the judgment by a sale under execution to satisfy a claim against one who concededly has the title, that confers jurisdiction. [Overruling McAnaw v. Matthis, 129 Mo. 142, and Stinson v. Call, 163 Mo. 323.]</p>

<p>1. ELECTION JUDGES: Removal: No Charges or Hearing. The hoard of election commissioners of the city of St. Louis have no authority, under the act of 1903, to remove judges and clerks of election, duly appointed, without an assignment of charges against them and without a reasonable opportunity to them to be heard upon the charges assigned.</p> <p>2. -: -: Public Office. Judges and clerks of election duly appointed to positions created by law; whose right and authority to perform the duties incumbent upon them emanate from the legislative branch of the State government; the duration of whose term (two years) is definitely fixed by law; whose duties are plainly marked out, which are clearly for the^ benefit of the public; whose emoluments of the office so held by them, as well as certain privileges and immunities, such as exemption from jury service, are provided for, are public officers within the meaning of the term “public office,” which embraces “the ideas of tenure, duration, emolument and duties.”</p> <p>3. -: -: -: Legislative Construction. Where the statute says that judges and clerks of election shall, for any of the causes enumerated therein, be “removed from office,” that is a legislative construction that they are public officers.</p> <p>4. -: Public Officer: Removal: Charges and Hearing. It is an elementary and fundamental principle that no one can he passed upon, either in his person or estate, without being first given an opportunity to be heard.</p> <p>5. -: -: -: -: Silence of Statute. Where the statute gives a certain board power of removal of certain public officers appointed by the board for a fixed term, for causes therein enumerated, but is silent as to the duty of the board to assign charges and to give the officers a hearing before removing them, it cannot remove them without first assigning charges and giving them the right to be heard.</p> <p>6. -: - — : -: Lack of Time. The right of a public . officer to be heard in an investigation upon charges affecting his title to the office, with its emoluments and privileges, is not to be denied on the ground of a lack of time to present charges and hear the officer in answer thereto. The fact that the successful operation of the law, under certain circumstances, may be retarded, furnishes no sufficient reason for ignoring fundamental principles of right and justice, which every citizen has the right to invoke in the preservation of his person, good name and estate.</p>

— Hon. Argus Cox, Judge. (1) The court erred in refusing to instruct on the question of alibi. State v. Koplan, 167 Mo. 298; State v. Taylor, 118 Mo. 153; State v. Adair, 160 Moe 391; State v. Hale, 156 Mo. 102; State v. McGinnis, 158 Mo. 105. (2) The court erred in refusing to give the instruction asked by the defendant in the nature of demurrer to the evidence. (3) The court erred in refusing instruction 2, asked by the defendant.

— Hon. Paris C. Stepp, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence at the close of the case. Champagne v. Harney, 189' Mo. 709; State v. Harney, 168 Mo. 167; State v. Huff, 161 Mo. 459'; State v. Patrick, 107 Mo. 147. (2) The court erred in permitting witnesses to testify that from the general appearance of prosecutrix they were inclined to think she had been mistreated.

— Hon. John A. Rich, Judge. (1) There can be no conspiracy between a husband and wife to commit a crime. State v. Miller, 162 Mo. 253. Held: and the same rule applies in other States, that a failure to make complaint is a circumstance from which the jury may infer that no rape was committed; hut that the weight of- that circumstance is a question for the jury.

— Ho». B. J. Casteel, Judge. (1) No objection can be made to instruction 2 because it omitted the words, “beyond a reasonable doubt. ’ Instruction 1 properly told the jury that the defendant was presumed to be innocent and must be proved guilty beyond a reasonable doubt. This was sufficient; it was not necessary to add said words to every instruction. State v. Smith, 164 Mo. 567.

<p>Appeal from Buchanan Criminal Court. — How. B. J. Casteel, Judge.</p>

— Hon. Henry G. Riley, Judge. (1) The court should have sustained appellant’s objection to the leading questions propounded to witness Curry. McKelvey, Ev., sec. 236 ; State v. Keith, 53 Mo. App. 383. (2) The court committed reversible error in permitting the State to prove the good reputation of the deceased when the defense had not put the reputation of deceased in issue by offering evidence of his bad reputation. McKelvey, Ev., sec. 120.

Louis City Circuit Court. — How. Walter B. Douglas, Judge. (1) The motion to quash the indictment for failure to allege that the property was received with a criminal intent, should have been sustained. Clark’s Cr. Law, p. 289; Rapalje on Larceny, secs. 311 and 316; Clark’s Cr. Proc., p. 265; People v. Johnson, 1 Park. Cr. Rep. (N. Y.) 564; Arcia v. State, 26 Tex.

<p>NO BILL OF EXCEPTIONS. Where no hill of exceptions is filed, there is nothing before the appellate court except the record proper, and if that is free from error, the judgment will be affirmed.</p>

— Now. E. B. McKee, Judge. (1) The information was sufficiently clear, definite and in proper form; it was properly verified as required by statute. It was a verbatim copy of one that was approved by this court; in addition, it follows the language of the statute. State v. Johnson, 115 Mo. 486; R. S. 1899, sec. 1842; Kelley’s Crim. Law, sec. 548.

— How. David H. Eby, Judge. (1) It was error to permit Mrs. Reed to testify in rebuttal to matters sbe bad gone over in chief. (2) Instruction 4, given by the court of its own motion, is erroneous, in that, on account of the arrangement of its clauses it gives undue prominence and significance to the fact that defendant was testifying in his own behalf. State v. Boyd, 178 Mo. 14.

<p>Appeal from Buchanan Criminal Court. — Ho». B. J. Casteel, Judge.</p>

— Now. Asbury Burk-head, Judge. (1) An initial is no name. The motion to quash, should have been sustained. The information must be presented by the prosecuting attorney, and this means in the name by which he was elected, commissioned and qualified. E. S. 1899, sec. 2477; Skelton v. Sackett, 91 Mo. 379; Martin v. Barron, 37 Mo. 301; 1 Bishop on Criminal Procedure (1 Ed.), secs. 119 and 120; State v. Martin, 10 Mo. 391; State v. Wall, 39 Mo. 534.

<p>1. GRADING STREET: Damages to Abutting Lots: Measure of Damages: Benefits. The measure of damages to lots abutting on a street whose grade has been changed by the city is the difference between the value of the lots prior to the change of the grade and the value after the change was made; and if the benefit to the lots, if any, by the change of the grade, more than compensates for the damages, if any, sustained, then the owner cannot recover.</p> <p>2. -: -~: -: Benefit to Public Generally: Theory of. Trial: Different Theory on Appeal. Cases must be heard in the appellate court and considered upon the same theory upon which they were tried in the lower court. Where a ease was tried in the lower court upon the theory that the damage to the lots abutting on a street whose grade was changed by the city, was the difference in the value of the lots before and after the change, and- if there was any benefit to the lots due to the change of the grade that difference should be lessened by that benefit, the appellant lot owner, on appeal, will not be heard to contend that the case was tried on-the wrong theory, and that it should have been tried on the theory that in reducing the damages, only those benefits which are peculiar and special to the particular lots, and not those which are common or general to the properties in the neighborhood, can be considered or taken into account.</p> <p>S. -: -: Cost of Improvements. In a suit for damages to lots, caused by a change in the grade of the street upon which they abutted, testimony as to the difference in the cost of putting in foundations for buildings on the lots before the change in the grade of the street, and the cost afterwards, there being no intimation in the questions as to the dimensions of the walls and buildings which might have been, or were to be, constructed, should be excluded as being too indefinite and speculative.</p> <p>4. -: -: -: Taxbills. In such suit, it was not reversible error to exclude taxbills issued by the city, for curbing and paving in front of the property. They were competent only to show that the lots had some value, but the issue in such, suit was not whether the lots were of value, but whether they had been damaged by the change in the grade of the street.</p>

— How. F. R. D earing, Judge. (1) The court erred in finding that E. L. Gage, the party taking deed under S. D. Cohherly, was the same person as the party mentioned as E. L. Gage, in the deposition of Anne D1. Gage, who died in Chicago in 1892. Identity of name is not equivalent to identity of person. Lucas v. Land Co., 186 Mo. 445. (2) Thefinding of the court, as to the fee simple title, or any finding of right, title or interest in plaintiffs was error.

— Hon. Jas. T. N.eville, Judge. (1) After a final judgment in the case the parties are out of court, and the necessity for their appearance is presumed to be at an end, and if the opposite party would take any further steps he must give his adversary notice and an opportunity to be present and to be heard. Caldwell v. Coleridge, 9 Mo. 358; Parker v. Johnson, 22 Mo. App. 516; Railroad v. County, 55 Mo. 162. The same view is taken by other courts.